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Copyright Trolls–A Different Embodiment Of The Patent Troll?

Nov 23, 2006
Caroline Horton Rockafellow

Ah, those trolls! And you thought you knew all about them... Well, isn't it nice to see a new face once in a while!

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For some time, the term "Patent Troll" has been part of mainstream conversation. Now there may be a new kid on the block when it comes to intellectual property protection and enforcement conversation–the "Copyright Troll."

The term Patent Troll is generally understood to mean companies and individuals that enforce patent rights, without having a marketable product available for sale, for the purpose of profiting from the efforts of companies that are commercializing products. In particular, this term is often used to denote groups that buy up patents or invest in companies with patent portfolios with the hopes of securing profits from favorable infringement enforcement lawsuits.

While the arguments in favor and against the Patent Troll are complex and not always cut and dry (see related article), there may now be a new variant of this debate.

New Kid On The Block?

The term "Copyright Troll" has begun to appear in online publications and blogs, and it may not be long before it becomes part of the mainstream conversation. So if a Patent Troll is an entity that buys up patents in the hopes of profiting from enforcement of the rights embodied in those patents, would a copyright troll be an entity that buys up copyrights with the hopes of profiting from the enforcement of those rights? Maybe. It is important to understand that although copyrights and patents are both forms of intellectual property, they are very different and provide very different forms of protection. Most importantly, a patent protects inventions that are claimed by the patent.

These rights can be used to prevent others from making, using or selling inventions covered by the claims, regardless of whether or not the infringing party even knew of the patent rights. In contrast, a copyright gives the owner the exclusive right to reproduce, modify, distribute, perform and publicly display the work. A third party cannot be deemed to infringe a copyright, unless that party actually had access to the work that would have allowed the infringer to copy the work. In other words, if two parties are each working in isolation and each creates an identical work of authorship, one could not be found to have infringed the copyright in the work of the other.

In contrast, if two inventors are working in isolation and one patents his invention (ignoring in this case any issues related to first to invent rights and assuming that patent is valid and enforceable), the second inventor will infringe the rights of the patent holder if the second inventor actually practices the invention covered in the claims of the first inventor. Accordingly, because the rights of patent holders and copyright holders are different and the relative enforcement actions will be different, the definition of a troll in each instance will also be different.

What Does All Of This Have To Do With Trolling?

The concept of acquiring property rights in the hopes of turning a profit on such rights is not new. With real property, there have always been speculative real estate investors who buy land in the hopes that it will eventually be of value to a third party. Those practices found in real property are equally applicable to intellectual property. Almost from the start of the internet, there has been a practice of securing domain names in the hopes of profiting from a later sale of the domain name. Even patent trolls are not new, it is just the terminology and the public discussion that is new.

Likewise, the practice of buying up copyrights, particularly the copyrights in music, is not new. Just think of Michael Jackson's purchase of the rights to the Beatles' music. There is also ASCAP, which although it does not own copyright interest, it has the right to enforce copyrights and collect royalties on behalf of its member copyright holders. Yet the difference between the purchase or third party enforcement of copyrights and the purchase of domain names and patent rights has been the intent of the parties. It has been this distinction in intent that has seemed to create the division between generally accepted behavior and a behavior that controversial to say the least.

So if ASCAP is not a troll and the practice of purchasing groups of copyrights, even for the purpose of enforcing rights in those copyrights is not generally considered a troll activity, do we have any concern that copyright purchasers will become a part of the controversial definition of a troll? If so, those definitions will be different.

In some ways, a copyright is more like a piece of land than is a patent. With a copyright, the owner has possession of all the rights associated with a specific work of authorship. It is a piece of work that is created by the author and is clearly defined. The rights surrounding copyright allow that author or the copyright owner to prevent others from "taking" that work. In contrast, patent rights are not so much about what the owner can do with the particular invention, but rather what they can prevent others from doing with their creations. While a copyright is analogous to a piece of land, a patent would be more analogous to a restrictive covenant on other property owners. So when it comes to "trolling," patent trolls and copyright trolls may very well be working in very different areas with very different results.

What Is The Potential For Copyright Trolls?

There is a reasonable argument that we may begin to see more common use of the word "Copyright Troll." Case in point, there are currently groups that hold large portfolios of copyright materials. While these groups are not generally deemed to be copyright trolls, there is the potential that groups could begin to focus on obscure works with pieces and parts that may have been either intentionally or unintentionally incorporated into their party works. If there were a concerted effort to seek out these obscure works for the sole purpose of profiting from the enforcement of rights that would not otherwise be enforced, we could begin to see more use of the term Copyright Troll. Although not directly analogous to the Patent Troll, the intent is similar and the terminology might be the same.

The other area where we may begin to see more use of the term Copyright Troll would be cases where copyright owners specifically seek out lawsuits. Take for example the case of Perfect 10 and Google. Earlier this year, there were claims that Perfect 10 set itself up to be linked to by Google in a potentially infringing manner with the specific intent of suing Google for such infringement. In this case, there is a reasonable argument that Perfect 10 was trolling for a copyright lawsuit. Accordingly, between groups that troll for a profitable copyright lawsuit and groups that acquire works for the sole purpose of profiting from enforcement actions that would otherwise not occur, we may begin to see more discussion and notice of Copyright Trolls.

It is unlikely that the Copyright Trolls will create the outrage or controversy that we have seen with the Patent Trolls. However, the success of the Patent Troll business model as a way of doing business does make it much more likely that we will see similar business models employed in the copyright industry. Do not be surprised if we see more and more enforcement actions based by financially motivated copyright holders who have secured such copyrights for the sole purpose of enforcing such rights.

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